What happens when the parenting plan you agreed on isn't being followed? It's common for occasional changes, but constant violations of a child custody agreement or visitation schedule can lead to major conflict. So, how can you enforce a court order related to this and ensure it is followed?
Let's consider the following scenario:
"My ex and I are divorced with two children. We have a visitation schedule in place, but the kids are always picked up late, or not at all, and I'm not getting the child support that we decided. I need some stability, and so do the kids! What should I do if I want the court orders followed?"
What should you do if your custody or visitation agreement isn't being followed?
Speak directly to your spouse
First, try speaking to your ex directly. Make sure they understand that you do not wish to go back to court to address this bad behavior. However, if it does not stop, inform them that you will do what is needed in the best interest of your children. If this fails to work, then you will need to seek court intervention.
When should you seek court intervention?
One way of doing this, without a lawyer, is to speak to your state's Department of Child Support Services (DCSS). They can help you enforce the court's child support order. In California, your ex has 30 days to pay the support amount before it becomes a violation of the court's order.
If the child support division gets involved, they will monitor support payments, and act quickly if payment is late. You must sign up for their services, which you can do online or over the phone. The division works for the state, which protects the interest of children, and so will seek out their financial support without any charge to you. They can file a contempt action, which has both civil law and criminal law elements.
If your ex is found guilty of contempt of court, then there are potential criminal fines, and even jail time (although this is a fairly rare occurrence). Courts are reluctant to order jail time unless there is an egregious offense, mostly because incarcerating someone prevents their ability to earn an income and thus, support their children. In order to find someone guilty of contempt, there must be a valid court order.
It has to be clear as to what is required – usually, a specific amount, due on a specific date, and how it is paid must be specifically contemplated. There must be evidence that the accused is aware of the court order. Their signature on it will usually suffice.
Finally, the accused must be willfully violating the order of the court. Sometimes, defendants will try to raise the defense that they cannot pay the amount. In these cases, it is important to get access to their bank accounts. You will be able to see if they are truly unable to pay the support, or if instead, they are going out to eat, traveling, or doing a lot of shopping. In those cases, it will be clear that they are able to pay and simply unwilling to prioritize their children.
When should you consider getting legal help?
If you want to make sure your ex is following the visitation schedule as ordered by the court, then you might need to get a lawyer involved. The child support division does not really handle these kinds of cases.
If safety is a concern, call the police
If your ex keeps the children overnight without returning them when they should be back at your house, you can contact the police, particularly if you are worried about their safety. Very often, if the children are safe and the police cannot persuade the other parent to return them, they may not want to get involved.
However, a police report creates a paper trail that will serve as evidence in the event you proceed with a contempt action. Because contempt cases can be difficult to prove, you will need to create an accurate record of all the times your ex has violated the court order. Use a calendar and mark late pick-ups or problems with the children's visitation.
If you are worried about the safety of the children when they are in possession of the other parent, you must seriously consider whether you should modify the current orders to account for shorter periods of visitation, or even supervised visitation. Speaking with a lawyer will help you determine your options and might clarify your concerns.
